SPEECH 



OF 



n/' 



HON. SHERRARD CLEMENS, 



OF VIRGINIA 



% 



ON 



THE PRESIDEiNT'S KANSAS MESSAGE; 



DXUTER£D 



SN THE HOUSE OF REPRESENTATIVES, FEBRUARY 18, 1658 = 









WASHINGTON: 
SPRINTED AT THE CONGRESSIONAL GLOBE OFFICE. 

1858. 



Adoo 
Q89 d 



,"' > 



SPEECH 



The House being in tlic Committee of the Whole on the 
state of i)ie Union — 1 

Mr. CLEMENS said: _ ' 

Mr. ^hairman: Tlie evening before the battle 
of Talavcra, in Spain, the armies of England 
and France encamped on the opposite banks of a 
river which, guiltless of human blood, still flowed 
between them; and the soldiers of each, as the 
shades of evening; hastened on, came quietlj/down 
to the brinlc.of the water and filled their canteens 
in preparation for the gory work of the inorrow. 
Sir, we who have hoped tliere was to be, and 
would be, some cessation to fiatricidal striff, that 
we had reached at last the palm tree and the foun- 
tain in the great Sahara of political life; and that, 
in the great principles of the Governrnent as es- 
tablished by law. Patriotism would intrench it- 
self so strongly that we might well bid defiance to 
a world in arms, now find ourselves, as erewhile, 
ranged alrtngeach side of a belligerent line of op- 
posing camps, marked out, as distinctly as that 
gleaming river in Spain which divided the con•^ 
querers and the conquered. While the white flag 
of Peace still flaps m the breeze, let us go down 
to the limpid streanfi and quietly drink together, 
whatever may be the fate of the country. 

Sir, I am not here to indulge in any sentiment 
of objurgation or of reproach. The Representa- 
tive of a larger white population than any member 
from Virginia, coming, as I do, from a partof the 
State jammed up like a wedge between Ohio and 
Pennsylvania — my people having many precious 
connections with both — finding amongst my im- 
mediate constituentsa large mass of northern men, 
who have built up manufacturing establishments, 
and devoted thei,r enterprise, energy, and capital 
to the development of the resources of my native 
city and State — I profe.'^s to speak on all questions 
here which apparently wear a sectional phase, 
without one particle of acrimony, but at the same 
time with the emphasis which is due to the time 
and the occasion. 

. Sir, a venerable man, weary with the cares of 
State; who has been for forty years in the ser- 
vice of his country, at home and abroad; who has 



illustrated her history in every political depart- 
ment by the high emprise of his statesmknshi|*; 
with no child to inherit his well-earned fame, but 
giving to a still united people all his love; with bo 
amljition before him, except to discharge honestly 
the high functions pertaining to the most majestic 
position upon earth — is now upon his political 
trial ! On the steps of yonder portico, but a few 
fleeting months ago, in the presence of assembled 
tliou.''.ands of his countrymen, he took a solemn 
oath to support the Constitution of the United 
States; under which it was his imperative duty 
to take care that the laws shall be faithfully exe- 
cuted. At the very outset of his administralioa 
the difficulties which surrounded him seemed al- 
most insuperable. Poison, in the covered dish; 
internecine war; civil strife; geographical preju- 
dice; treason, with its bold, brazen, and defiani 
front; ambition, with its cool, plotting, unscra- 
pulous schemes; bankruptcy, with the hands of 
Briareus, throwing curses in his path; seditiori, 
with its ear-kissing arguments; sharp-toothed ua- 
kindness, lied as a vulture to his heart, until, like 
Lear, deserted by his own kin in the midst of the 
pitiless storm, he might well say — 
I " Close pent-up guilts, 

I Rive your concealing continents, and cry 

Tliose dreadl'nl summoners grace. £ am a man. 

More sinn'd against, tliaii sinning." 

Sir, I am not here as his unreasoning advocate^ 
I am not here to prate of blind loyalty to him,ar 
to any other man; but as one of the humblest of 
those who stood by him in a fiercer trial than this,' 
I shall not submit, come what may, to see hitn 
wounded in the house of his friends. 

Pass with me, then, sir, from the petty consid- 
eration of who shall be Earl of Durham, or who 
shall be Vicar of Bray — from the heated arena, 
where mingle iheexacerbationsand pnjudicesana 
j passions of the hour — back to the earlier and better 
! days of the Republic, and let us see how far the 
President can be sustained, either by precedent 
or by existing law, which he would have been 
recreant to himself if he had not faithfully en- 
forced . 

First,then,of the case and the law. On theSCtli 



day of May, 1854, the Con<jrRSS of the United 
States organized the Territorita of Nebraska and 
Kansas, hftth of which did not llten contain, ex- 
diisive of the aboriginal inhabitants, two hundred 
human souls. It was provided, " that tlie State 
or S'ates created witliin the same, should be re- 
ceived into the Union, with or without slavery, as 
theii cort'litiilions rnay prescribe nt (lie lime of their ad- 
mission;" and to that end it was expressly stipu- 
lated, " that notliinj^in the act contained should be 
construed to legislate slavery inin any Territory 
or Slate, nor to exclude it therefrom; but the peo- 
ple thereof should be left perfectly free to form and 
regulate their domestic institutions in their own 
way, subject only to the Federal Constitution," 
and all of us know that the only requirement bv 
that instrument is, that the State constitution shall 
be rejuiblican. That no obstacle might be inter- 
posed by Federal authority, and that these ends 
might be completely attained, the Congress of the 
United States abnegated the pnwer of making laws 
for said Territories by anomalously stipulating 
♦^' that the legislative power of the Territory shall 
extend to all rightful subjects of legislation, con- 
sistent with the Federal Constitution, and the 
provisions of the organic act." Congress even 
went furtlier than this; for while the right of suf- 
frage was conferred on every actual resident wliite 
male inhal)itant above the age of twenty-one 
years, it still further anomalously stipulated that 
" tlie qualification of voters, at all subsequent 
elections, shall be prescribed by the Territorial 
Assembly." 

Up to this period, tlie practice of tliis Gov- 
ernment, without being uniform, had been, in a 
majority of cases, first, to create a territorial 
g:o Vein men t; then, to authorize a census of the 
inhabitaiitR, by Federal authority; and finally, to 
empower the inhabitants, by what was generally 
t'-rnied an enal>ling act, to liold a convention for 
the purposeof forniingaconstitution preparatory 
to admission into the Union; and the time, place, 
and manner of holding the convention, with the 
qualification of voters in the eleciion of its dele- 
gates, were all specifically prescribed. 'I'liey be- 
came a people only when they organized as a State; 
before, they were underllie legislation ofCongiess, 
nt-:d were called inhabitants. Their political rights 
as a people remained, therefore, in abeyance, un- 
til they passed into the condition of a State. The 
passage of this act, apparently changing the tor- 
litorial policy of Congress, but in reality adopting 
an old princi|'le, awakened unprecedented oppo- 
sition. Tlu; whole country was convulsed. Tiie 
dread of Madison was upon us, when he declared 
with almost prophetic solemnity: 

•• Should a state of parties arise foiiiided on geo!»raphie<il 
hmiiulari"^, and otlior physical distiticlioiis, wliicti liappen 
IL) eoimirie wit:i tlieni— wlial is to control those great npiil 
sive ina^jse.s from awlnl shocks aaainst each other. If nov- 
c3Ues are to l)i; (-liuiiucd — the most alarminirol'all novelties, 
the most wild of all projects, the most rash of all attempts, i:^ 
tliat of rcncJing us in^ieces, in order to preserve our liber- 
ties, and nromote our tiappinoss." 

The extremes of the Union attempted to influ- 
ence the future fate of the nascent Stale. Instead 
of havin.<f, as heretofore, a peaceful emigration to 
« cotnmon Territory, we witnessed the sad spec- 
tacle ot organized efforts, outside of the Territory 
iia^lf, to foist into it a population v/ilh swords in 



their hands instead of plowshares and pruning 
hooks; and intent upon ciiliivating ihe enmity of 
each other instead of tilling the soil that lifti-d its 
rich lips up to the husbandman. In tiie midst of 
embittered contests the election for membiM-s of 
the Territorial Legislature look place. The re- 
sult created intense strife, for the stake was too 
deep to be quietly acquiesced in l)y either strug- 
sling party, and, from that day to this, it has 
known no ce.«sation. A portion of the people of 
Kansas have always refused to acknowledge the 
laws; havealways refused to exercise ilie [lowerof 
changing them, by voting at the regular ehciions, 
until, when the President came into oflice, he 
found this faial inheritance Uf)on him; rebellion 
actuall}' existing-, and advocated, not only against 
the territorial laws, but against the Federal au- 
thority itself, and every effort made to l)ringal)out 
acta of lawlessni.'ss and anarchy. Whatever diffi- 
culties exist at this hour; whatever may be the 
complications of the Kansas question, they have 
all resulted from the systematic and premeditated 
refusal of a mass of the people to vole at any 
election, except one established by tlie territorial 
laws. An act was passed, submittins to the people 
whether or not a convention should be calh'd to 
form a constitution for the -tale of Kansas; a por- 
tion of the people refused to be registered; threw 
every o stacle in the way of taking a full census; 
and finally refused to vote at all. The convention 
met and framed a constitution, and although, by 
die organic act, that body [lossessed the power of 
ordixining and establishing it, it was submitted, in 
its most material part, to I'Very free while male 
inhabiianl; and for tlie fifth lime a mass again 
withheld their votes. If those, who thus reiiised 
to rest'upon their privile<res, constitute a maji>rily 
of the people of Kansas, they cannot now avoid 
the issue which ihey have voluntarily and persist- 
ently made. 

On the one side, therefore, we have a portion 
of the people of Kansas and the Teriitoruil Le- 
gislature, by resoluliiins now on file ammig the 
proceedings of this House, setting up the Topeka 
constitution, formed by a voluntary assemblage, 
without law, without even the semblance of law, 
and against the consent of the established author- 
ilies; on the other, we have the Lecoinpton con- 
stitution, created under lejral sanction, and sup- 
ported by a regular succession of legal authority. 
Both constitutions were stil)milied to the people; 
but in each case there was a vast difference in the 
mode of submission. The Topeka constitution, 
without permitting a vote on the subject, foiever 
prohibited slavery; and it was presented to the 
people with the alternative of either voting for it 
as it stood, or having no State government at all. 
The Lecompton consiitution — embodying all the 
inaierial parts of the Topeka consiituli(>n, consti- 
tutional privileges, bill of rights, and all, includ- 
ing the clause prescribing the mode of making 
amendments at'ter ]8G4,and affirming merely the 
decision of the Supreme Court in the Dred Scott 
case — was submitted to the people as a constitu- 
tion with slavery or without slavery, as they 
might themselves detiymine. The mere man- 
ner of the submission, therefore, specifi'd in the 
schedule, could not fix upon the people of fvan- 
sas a-constitiilion in any essential particular dif- 



ferent from tiie Topeka constitution, except upon 
the siiiijle, isftlaicd question of slavery) wliicli 
was left to their free decision, so far as they could 
control it, under the Federal Constitution as ex- 
pounded by tiie highest judicial tribnn'al in the 
land. On the one side, therefore, we have a Ie2;al 
movement, carried out to a practical result, in def- 
erence to Judicial nuthoriiy. On the other side 
we have ilii' embodiment of loose massps, acting 
upon what they choose to term organic sover- 
eignly, not only without the sanction of Isiw, l)ut 
in open defiance of all established authority. We 
have legality on one side, and lawlessness on the 
other. 

The then existing Legislature of Kansas hav- 
ing empowered a eonveniion of delegates to form 
a government, with the single condition that the 
same should be republican, it may becomeessen- 
tial to inquire whether, in that view, it is neces- 
sary to submit the same to the people for ratifica- 
tion, to give it validity. Can such a constitution 
be formed by the people of any Territory in defi- 
ance of all law, and all existing legal authority? 
Can thev, in primary meetings, witliout law, by 
the simple power of numbers, fi-ame a govern- 
ment within an already established government, 
and, without express legal sanction, ovi-rthrow it? 
Sir, under the principles of our Government, this, 
wheth&r in a Siaie, or in a Territory, is not re- 
form, it is revolution; and the Federal Govern- 
ment is armed with express power to suppress it, 
not only by the Constitution, but by the act of 
1795. Our fathers anticipated just such questions, 
from tlie prevalence of unsound doctrines, as we 
have had to meet; and it was fii'si proposed in the 
Federal convention " that a republican constitu 
tion, and its existins; laiv^, ought to be guarantied 
to each State by the United States:" but it was 
finally modified toguaranty to each State a repub- 
lican form of govcrnmetii. •JN'ow, as the Consti- 
tution specifies tiiat the on Iv condition which shall 
be required of a State, preparatory to admission 
into the Union, is that her constitntion must be 
a repui'lican one; and as the Constitution specifies 
the same condition for the continuance of a State 
in the Union as is required for her admission 
into it, let us see what that term "republican" 
means. 

Sir, under our system of government everybody 
knows that the people are the original source of 
all political power; yet there is no mode for a ma- 
jority to manifest their will except in conformity 
with and m subordination to established law. The 
very objects of constitutions are to litnit and de- 
fine the powers to be exercised by the officers to 
whom the people may commit the different de- 

Eartmenls of the government; and the people, by 
oth constitutions and laws, impose restraints 
upon their own rapacity, violence, and pi>ss>ons; 
and the majority, not less tliati the minority, are 
bound by all, until a li!ga land constitutional change 
is made, [t was well said by Madison, in the de- 
bales in the Virginia Convention, on the adoption 
of ihe Federal Constitution, ihal — 

"The lurhulciico, violence, nnd ahuse of power hy the 
majniity liaiiip iiix hm tiie risiils of llie iiiiiiorily, liavc pro- 
duced lactiuiis and coiMniotioiis; aiid tliese, in reiiulilics, 
wore than any ellier caii.-e, h;ive produced despoli.in. W 
we go over llie wliole. history o.'ancieiM and modern repub- 
lics, we sliall find tlieir de.struclioii lo h.ive generally result- 



ed from those causes. If we oon.oirier the peculiar condi- 
tion of the Uiiiteil States, and go to the sources t)f tiial 
diversity of sonliment which pervades its iiiliahitaiits, we 
shall find ffreat danger to fear that the same causes may 
teriniMate hcrciit the same fatal effects which tliey produced 
in tliose repuhlics." 

Sir, according to the principles of our GnverH- 
ment, it is the majority of votes given at tiny pre- 
scribed election, and not the votes withheld by the 
people, which inust determine the result. The 
Constitution of the United States might have been 
adopted and put in operation by a niinority of 
the whole people. A rninority of the people of 
the United States may elect a President. A mi- 
nority of the people may forever prevent all amen^ 
ment to that instrument. A minority of the people 
of any State may adopt the constitution if a ma- 
jority prove derelict to their duties and refuse to 
vote. Not less than seven States of this Union, 
whose constitutions have been submitted to the 
people within the last twenty years, are imw or- 
ganized by a minority; and 1 call the attention of 
the gentleman" from Pennsylvania to this pregnant 
fact, for, as in the case of that State, if the care ie 
taken to compare the vote cast against the consti- 
tution, and then estimate and add to it the vote 
which was not given at all, it will be found in every 
instance that the aggregate outnumbers the vote 
which was given in the affirmative. The last con- 
stitution of Pennsylvattia was adopted i^i the year 
1836 i>y a minority of the whole people of Peni>- 
sylvania. And yet you talk to me of popular sov- 
ereignty. Such was the case in Virginia. The 
last constitution of Virginia is the act of a minority 
of the people, if you estimate the number of votes 
cast in the regular State election. All our expe- 
rience proves that the vote given upon the ratifi- 
cation or reje'ction of any State constitution is rel- 
atively smaller than the vote cast at any excited 
political election. The reason possibly may be 
that the fundamental principles of our Govern- 
ment are so well settled that one State constitution 
is merely the reflex or transcript of another; and 
the people feel stronger the necessity of selecting 
proper men lo carry out those principles, than they 
do in the mere elemental enunciation of the prir>- 
j ciples themselves. 

Sir, the whole theory of our Government pro- 
I ceeds upon the assumption that the people cannot 
1 be in default, or derelict to themselves, because 
the power, subject to legal restriction.*, is always 
in their own hands. After a constitution has been 
put in operation, they are esto])ped from resorting 
to any means todisturb it, except the legal means; 
and using these, and these alone, they can only 
remedy the consequences of their own folly in ab- 
staining from voting, or in absenting themselves 
from the polls. These undeniable trutl's have a 
direct application in the case now before us; and 
for that reason I ask that three editorials from ihe 
Herald of Freedom, the organ of the Repulilican 
parly in Kansas, may be jmblished herewith as 
appendix No. 1. 

The great American idea— that which distin- 
guishes this from all other Governments which 
have ever existed — consists in the exercise of the 
powers of the people by delegation or represent- 
ation. While popular sovereignly, acting by ma- 
jorities, must act under the laws, it is precisely 
because the people cannot act in mass that the 



& 



right to choose a representative is each ciiizen's 
jiorlion of organjc sovercis;n power. Before the 
will of tlie people be ascerttiincd, the law must 
prescribe the mode and the manner in wliich that 
will shall be desij^nated and expressed. If any 
portion of the people, it boots not why, do not 
choose to avail themselves of ilieir own rights 
under the law, they must necessarily and unavoid - 
ably be governed by those who do. Any other 
liberty than this is not American liberty; it is 
Parisian liberty; it is Mexican liberty. The op- 
eration of our system under these restrictions 
becomes harmonious and beautiful; and tlie ballot- 
box with us Incomes as infaililile as the mafcic 
box of the enchanter, which healed every wound 
and cured every disease. 

The American distinction between a convention 
and a Lej^islatiire implies only a difference in 
power and authority. A Legislature can act under 
a consliluiion; and it is the only cnm|-)elent l)ody 
to fnll a Convention to change it. Thiou;{ii these 
mediums the whole powerand maji^siy of the peo- 
ple are as fully exer.'ised as if each man v/ere pres- 
ent as an active participator. It is, indeed, the 
percolaiion of the will of the people through the 
Legislature, and thence through a convention, 
thai, like the filtiaiion of water through porous 
stones, clears and purines it. The peofilecan ex- 
ercise no«ct of supremacy or legislation at all, 
except by assembling all in a mass convention of 
the whole Siale,and taking the vote by the head, 
or by chosen representatives. As the first is im- 
possible, the last became here the grand advanced 
ideain politics; and theexerciscof individual sov- 
ereignty was made to consist in the choice of rep- 
resentatives, with such powers as tiie people de- 
cided to give them. The very powercompetent to 
bind the people in other respects is coflipetent to 
bind them in the foiiiiation of a constitution. The 
idea of re.submission to the people themselves of a 
constitution for ratification or rejection, or legis- 
lative acts which they had expressly authorized, 
was not the idea of republicanism at the era of the 
Revolution, nor at the lime the Federal Constitu- 
tion was forined. That great instrument, the most 
majesiic product of intelli-ct in the v.'orld, is not 
the work of the j^eople of the Union, as a whole 
or as an aggrei:ate mass. There is no provision 
anywliere in it, nor no law passed under it, nor 
no stipulation by the Federal convention, by 
which it was possible to ascertain whether a ma- 
jority of the whole peo[)le of the United States, 
counted by numbers, were in favor of it or not. 
John Adams, in one of his letters to Jay, says if 
it had been submitted directly to the pef)ple, it 
would have lieen voud down. It came very near 
being defeated in several of the Stale coi.venlions 
by the delegates of the peojile who were empow- 
ered to consider it. It was the discussion and 
scrutiny of deliberative bodies which saved it, to 
throw Its broad blessings over this continent. 
Four of the present States of this Union, contain- 
ing a majority of the whole population, could have 
rejected the Constitution, and yet it would have 
been bindin<;as a Constitution of the United States 
upon the nine Stales wJiich ratified it, containing 
a"minr)iity of the peofile. 

The D(K-.laration of Independence itself, was not 
the act of the people, counting by the head. Thai 



great deed which changed our relations to the 
whole world, never was submitted to the people. 
It was the work of delegates appointed by a con- 
vention in each of the colonies, each colony acting 
for itself. They were vested with aiji^neral grant 
of power, " to consent and agree to ail m-asures 
which said Congress shall deem necessary to ob- 
tain redress for American grievances." They 
announced themselves as acting as the represent- 
atives of the United Slates, in general Congress 
assembled, whet) they appealed to thi; Su|)reme 
Judge of the world for the rectitude of their inten- 
tions. Rlif>de Is and existed from the Revolution 
up to 184;2, under a r()yal charter from Cliarles 
II., granted in 1663. But from the first colonial 
constitution, formed by Vir^iniii 5th July, 1776, 
down to the last of the original Thirteen, not one 
of them was submitted to the people; but their 
delegates, in convention assembled, ordained and 
estal)lishe(l them, in compliance with the plenary 
powers granted to them by the peoj)le themselves, 
or the Legi.^laiure. In the case of Maryland, 
whoso constitution was adr>pted on the ]4ih of 
August, 1776, it was expressly provided that 
nothing in il, is form of goverinnenl which relates 
to tlie eastern shore particularly, shall at any time 
hereafier be altered, unless for the alteration and 
confirmation thereof at least two thirds of all the 
members of each branch of the General Assembly 
shall concur. 

But the principle for which we are cmUending 
may be made at once apparent by the casi> of 
Rhode Island, the merits of which were brought 
before the Supreme Court, in the trial of Luilier 
vs. Borden. Voluntary meetings of the people, 
without the consent of the existing charter gov- 
ernment, or any law^ for the purpose, were held, 
and resulted in the choice of deli-g.Htes to form a 
newconsiituiion to be sul)miited to the people for 
their ratification or, rejection. Those who were 
opposed to the mode took no part in the proceed- 
ings, and refused to vote. The delegates thus chosen 
met in convention, and submitted their work to 
the people under voting (jualifications and officers 
prescribed by themselves. Those who were op- 
posed to the proceedings, again vifused to vote. On 
the returns of the election, however, tin' conven- 
tion declared that the constitution was ado[)ted by 
a majority of the people of the Stale, und at- 
tempted to put il in operation by elections for all 
officers to serve under it, and the new government 
was accoriTingly organized, and came in direct 
conflict with the old one, which had niwer re- 
ceived the sanction of the people by a direct vote, 
although they had lived under it for two hundred 
years. The convention proceeded upi^n I he gen- 
eral principles that the sovereiKiity of the pcMijile 
is supreme, and may act in forming government 
against an already existing Kovernmenl wilhout 
law; and that they are the sole judges of iht^ form 
ofjgoverninent best calculated to promote their own 
hapfiiness. The result was, the two govi'rnmeiits 
were brought into the necessity of deciding the 
contest by arms, as must be the case in every in- 
stance of the kind. Till! charter eovernineni was 
sustained, and the Legislature under it — the only 
competent body — called a convL'iition, and a con- 
stiiution was formed by it which is now in opera- 
lion. 



A republican constitution, then, means a system 
of funiiamentnl rules, prin'iples, and ordinances, 
for the government of a State or nation, fnrmid 
and adopted under legal restraints and with Irsral 
sanction. 1'his was the idea of our fathers. This 
is the idea embodied in the Federal coinpadt. 

Sir, this doctrine of the people acting- in mass 
upon |>rimarv organic sovereignty, is found prac- 
tically exemplifit'd nowhere, on the face of this 
globe, hut in the single canton of Appenzel, in 
Switzerland, where, in the midst of the eternal 
glaciers, all the males over twenty-one years meet 
semi-annually to legislate, each with arms in his 
hands! Prance, in the wildf-st, bloodiest, period of 
her revolution, had it; and it found its fittest exem- 
plification when its grpat prototype and advocate, 
Marat, pro|iosed,a Dictator, with a cannon btill 
chained to his leg, that he might always be in the 
power of the people; or, v/hen the infuriated mob 
gathered >«i the foot of the guillotine, and like hu- 
man ghouls and vampires, lapped up the warm 
blood which streamed beneath the glittering blade! 
Oursystem was expressly formed to guard against 
these dire results. Shall we countenance a prin- 
ciple which must inevitably leave it in ruins? 
Shall v/e, shall this Union, countenance a prin- 
ciple which will [ilungeus into all of the excesses 
of the wildest period of the French revolution? 

On the adoption of the Federal Constitution by 
the States, their constitutions remained the same: 
and they were changed from time to time only in 
the mode therein prescribed. Sir, the very prin- 
cijile of the KaiL-ias and Nebraska bill, and the 
issue now presented to the country by the Le- 
compton constitution, was eml)odied in the case 
of Vermont, before the Constitution of the United 
States was formed, and under the old Articles of 
Confederation. Vermont v/as the first State ad- 
mitted into thft Union. Her present existence 
dates back to the year 1791. Ten years before, 
4n June, 1781, the existing Legislature of Ver- 
mont proposed terms of union to the American 
Congress. She was, at that Ukie, and for many 
■years afterwards, involved in contests with New 
Hampshire and New York, in regard to jurisdic- 
tion and boundaries of land; for tlien, as iio!!.-, in- 
creased empire brought, as it always brings, mul- 
tiplied perplexities. Congress refused the prolTer, 
without the consent of the coterminous States, 
and assumed the prerogative of h-gisiating upon 
tlie rights of Veiinont, and controlling her local 
government, without lier consent. On the 9th 
day of January, 1783, Governor Chittenden re- 
plies, on the part of the Legislature, in one of the 
most characteristic State papers on record. As it 
is not generally accessible, i beg;' leave to append 
hereto an extract from it, and from the address 
of the General Assembly of Vermont, in the f(U-m 
of an appendix, marked No. 2. In both of these 
documents the ground is taken that Congress can- 
not exercise any other than delegated authority; 
that they have no right to interfere in the internal 
police or government of any Territory or State; 
that they have not the right to make or unmake 
States, within or without the Union. They avow 
that such a power involves the whole doctrine of 
Great Britain in regard to the Colonies; and they 
declare, Vv'hen ihey are call;;d upon to abrogate the 
laws of Vermont, reverse the solemn decisions of 



her courts of justice, and overthrow the whole 
civil government, they think themselves justified 
to God and the world when they say they cannot 
comply with such requisitions! 
I Sir, these bold words come down to us from t!io 
I most northern State of this Union; from the tur- 
I moils atid carnage of the Elevolution, to act as a 
j talisman of safety in the very arena of fratricidal 
I bitterness and geogra[ihical su-ife. It is well, 
therefore, to go back to the spirit and sentiments 
of these pioneers of the Green iVIountains, who, 
in the midst of an American war with Great Brit- 
ain, the dependency of Canada on their northern 
border, and thus, with the stronscst motives to 
make common cause against the Confederacj' 
which fiirmed her southern lines, and with which 
then there was a subsisting. controversy, yet had 
enough of enduring valor to maintain untainted 
the true republican principle in the face of almost 
irresistible temptations. Honor, ail honor, sir, 
to such heroism v/herever it may be found, and 
I come from wh«it quarter it may ! It has in it the 
I soul of Ethan Allen! 

I Sir, considering the position of thp.t State this 
moment, so far as the policy advocated by her oa 
this floor may be indicative of her SiUiMments, i 
point back to her earlier and better era with pecu- 
liar exultation. The principle to which s!ie ad- 
hered then, carried out by her now, would make 
her — 
'• A"! fflorious as the British Queen renowtm'l, 
Who sucked the poison from her hiubaiiil';) wound !" 

Mr. MOHRILL. I have no objection to the 
course of remark the gentleman is |>ursuing; but 
I desire that he shall mark this great difFerence 
between Vermont atui Kansas: that Vermont was 
never a colony of Great Britain, nor was she ever 
a Territory of this Union. 

Mr. CLEMENS. Vermont belonged to the 
existing colonies of New Hampshire and New 
j York. What is the record ? The record is, that 
; this claim, set up by the fieople of Vernmnt, was 
i neveracknowledged by this Government, and she 
came into the Union only with the consent of New 
Hampshire and New York. I am glad the gen- 
\ tleman has made the interruption. I was endeav- 
1 oring to show that tlie whole action of this Gov- 
ernment, in regard to its territorial policy, main- 
tained the doctrine that the legally exisiing powers 
at the time were acknowledged, that tiieir rights 
were maintained, and I was bringing this result to 
a practical exemplification in the case of Kansas. 
I thank the gentleman for his opportune interrup- 
tion. 

Sir, I take the doctrines of Vermont, laid down 
before, long before, her native son, nov/ the cyn- 
osure of tlic great West, was born, and find, in 
her example, a sufitcient rebuke to the vagaries of 
the hour, it required no enabling act to bring 
lier into the Union. Her constitution was estab- 
lished in 1777 by a convention authorized " to 
form a government." But the act was silent as 
to the ratification of the same by the people; and 
iheconvetuion, therefore, under the plenary power 
given, ordained it at once, without submission. 
The getiileman from Vermont sits this very mo- 
ment upon this fioor urJer the action of tluitcon- 
v.'ntion. He is bound by it to this hour, berause 
there has been, from that day to this, a regular 



8 



fiuccpssion of legal authority recognized by the 
Federal Giivcriimem. In 1791 a convention was i 
called by the Vermont Legislature to decide upon ' 
the extiidiincy ofherentering the Federal Union. 
The coiivtniiiin determined favorably the quis- 
tion. They nuified the Constitution of the Uni- 
ted States, and applied to Congress by petition 
for admission. On the presentation of the con- 
stitution, which had been adopted in 1777, thir- 
teen y._'ars before, on the 4ih day of March, 1791, 
Vermont was admitted into the Union. 

Sir, what was the case with KenMicUy, which 
came next in order.' Previous to 1789, nine dif- 
ferent conventions had been held in Danville, to 
determin.' upon the contest between the mother, 
Virginia, and the daughter, Kentucky; and each 
one seems to have been attended with a bitter- 
ness more and more intensified. While this strife 
was still going on, the Federal Constitution was 
adopted, and Kentucky was placed in new relu- j 
tions to the existingGovernment. Great ferments ] 
prevailed. Discord among the people ran riot. 
Four conventions were held in quick succession. I 
Separation from Virginia by violent means was i 
©penly proposed; partisan leaders, with their i 
bands of marauders, devastated the Territory;' 
all law was set at defiance, and civil war seemed i 
almost inevitable. If those who conceive the .scenes j 
in Kansas for the last few years have been with- < 
out a paialle], will but investigate the intestine | 
feuds in Kentucky — the combinations against the j 
laws and riglitl'ul authority of Virginia— and the' 
same slate of things in what is now Tennessee, | 
against the Government of North Carolina, it will j 
be found, that, now as then, human nature is still ! 
the same; and that when bodies of men determine \ 
to place themselves in rebellion au:aiiist (-xistino- 1 
forms of society, specious pretixts will always ! 
be found to delude the people. In the face of all j 
efforts to the contrary, the rightful authority of I 
Virginia was maintained by herself and the Fed- I 
erijil Government, till, pn the 18th day of Deceni- 1 
ber, 1789, Virginia, as the only competent legal i 
autliority, passed a law so remarkal)le in its pro- 1 
visions that I must now be content with the brief- j 
est possible al)stracl, and affix the whole hereto i 
in an Appendix, as No. 3. i 

The law provides for two conventions; one a i 
provisional convention to determine on the expe-j 
diency of separating from Virginia, with authority ! 
to fix upon a day after the 1st day of November, ! 

1791, wlien the laws of the State should cease to { 
Ojierate. The authority;, however, to .supersede 
the jurisdiction of Virginia was made dependent' 
upon the assent of the United Slates to the erec- 1 
lion of s.iid State, whicii was required to be given i 
after the Isi day of November, or somi! coiTveni- } 
ent time thereafter. This convention was armed 
with power to take measures for the election of an- 
other convention, on some day before the author- 
ity of Virginia should cease, and after the Istday ' 
of November, 1791, " with full power to frame I 
and establish a fundamental constitution of gov- , 
ernment." Congress, by an act passed February | 
4, 1792, recite the act of Virginia and refer to the j 
foct that a convention cf delegates have petitioned j 
Congress to consent that on the Isl d ly of .Tune, | 

1792, Kentucky should be formed into a new 
Stale and received into the Union; and in con- 



formity thereto, the act provides that Kentucky 
shall at that lime be admitted. Here was a case 
in which the consent of Congress was givi>n with- 
out any State coiistiluVon having been formed at all, 
at f'e time the act wai parsed; for, in compliance 
with the law of Virginia and the authority given 
to the second convention, the constitution of Ken- 
tucky was not formed till the 19th of April, 1792, 
after the act of Congress had been passed The 
authority given by the Legislature of Virginia 
was construed by its terms to be plenary and com- 
plete, and the convention which formed the con- 
stitution of Kentucky, established the same with- 
out submitting it to the people. In this case, as 
in every other, since the foundation of the Gov- 
ernment, the lawful authorities were maintained 
and supported by actual legislation. 

The admission of California, even, with an in- 
adequate population, under a convention called 
together by a general of the Army of the United 
States, surrounded by his officers and his camp, 
and who might Iiave carried out the congruiiy,an(i 
written his civil proclamatjon, calling a constitu- 
tional convention, on a drum-head, was not an 
exception, althougl), as the gentleman from Mis- 
sissippi has so well intimated, the wild cattle of 
the plains were lassoed and brought into the Union 
under ^itasi legal authority; for it was claimed 
that the right to govern was correlative to the 
right of acquiring territory, and the government 
under conquest and military authority was, for 
the time being, from the very necessities of the 
case, competent and lawful. Sir, this whole ques- 
tion was presented in the selt'-styled Republic of 
Frankland, now the State of Tennessee. In 1784, 
a convention of delegates elected by the people, 
without law, and without the consent of North 
Carolina, (within v/hose jurisdiction the territory 
was,) met at Jonesborough and formed a consti- 
tution. Under this, an Assembly met and elected 
John Sevier, Governor, together with judges, and 
all other State officers, civil and military. This 
conslilutioii was the Topeka constitution of the 
time. All dependence upon North Carolina was 
denied, and they absolved themselves from her 
sovereignty and jurisdiction. In 1785, Governor 
Martin, of N<u'th Carolina, issued his proclama- 
tion and protested against all these proceedings. 
The contest continued, and like the Isaliccon, 
which flows through laurel, grew bitter as it ran. 
William Cocke was sent t6 the Continental Con- 
gress, with a constitution adopted by a conven- 
tion of the people of Franklaiid, and applied to 
have the same admitted into the Union. Congress 
utterly disregarded the application. Why, gen- 
tlemen upon this side of the Chamber, why .' Be- 
cause it was made against all legal authority, and 
without the sanction of North Carolina, the only 
competent authority to act. Two empires were 
then exerted over the same unhappy people at the 
same time, as in Kansas now. Double courts 
were held in each county, one by judges ap- 
pointed by the State of Franklaiid, the other by 
North Carolina. The stoutest, most resolute, and 
courageous man was appointed sheriff; taxes 
were levied by both Governments, and paid to 
neither; courts were broken up; records stolen; 
and anarchy and civil war disturbed ail the rela- 
tions of society. This fearful strife continued for 



9 



two years, till September, 1787, v/hen the people, 
by deleffates sent to the General Assembly of 
North Carolina, at Tarborough, were s'ad to re- 
sume their a!Ies;iance to North Carolina. She 
pursued towards lier prodigal sons a noble policy; 
and on the 25tlvof February, 1790, ceded to the 
United States all her territory west of the eastern 
boundary of Tennessee; and Congress, by the act 
of the 2d of April, 1790, accepted the grant, and 
agreed to place the territory under the operation 
of the ordinance of 1787, with the exception of a 
primary stipulation in the deed of cession from 
North Carolina, that the slaves in the State should 
not be emancipaied. On the lltli of February, 
1795, the Territorial Legislature authorized a cen- 
sus to be taken, and directed the Governor to rec- 
ommend to the people, upon a day to be fixed by 
him, to elect in the manner prescribed by law five 
persons in each county as delegates to a conven- 
tion " for the purpose of forming a constitution 
and permanent government." In conformity with 
the power thus given, the convention ordained 
and established the constitution, and it was never 
submitted to the p(wplea3 that was not required by 
the organic act. The Governor, William Blount, 
certified to Consrress, that the number of inhabit- 
ants exceeded the quota fixed by the ordinance of 
1787, and sul)mitted, by a special messenger, the 
constitution which had been formed, and claimed 
the riirht to be admitted as a State. Washington 
committed the whole subject, in a special message, 
t& Congress, in which he inferentially accedes to 
the right, without making any substantive recom- 
mendation; and on the first day of June, 1790, 
Tennessee was admitted into the Union. 

How was it with Ohio, referred to by the gentle- 
man from Alah.ama [Mr. Shorter] this morn- 
ing, but not fully stated ? Congress, by the act of 
April 30, 1802, authorized the"inhabitants of the 
eastern division, northwest of the river Ohio, '■ to 
form for themselves a constitution and a State 
government." Here, for the first time. Congress 
took the initiative, and usurped power heretofore 
exercisrd by the Territorial Legislature; estab- 
lished the qualifications, time, and mode of elect- 
ing delegates to the constitutional convention: 
fixed Chillicothe as the place for the meeting; and 
offered to the convention certain propositions in 
regard to the public lands, which, if accepted by 
it, were to be oiiligatory upon the United Slates; 
thus distinguishing between the convention and 
the people. This act occasioned extreme oppo- 
sition, not only from these terms, but because 
Congress disposed of the territory lying north of 
a line drawn east and west through the southern 
extreme of Lake Michigan, and contrary to the 
ordinance of ]767. As the peojile of Michigan 
were opposed to this policy, and could have de- 
feated ihe convention if they had been retained, to 
render congressional usurpation effectual, Michi- 
gan was united to Indiana Territory, and subse- 
quently was separately organized. 

The opposition to these measures was deep and 
implacable; and the whole spirit and principles 
which were involved, may be seen by the remarks, 
in the House of Representaiives, by Mr. Fearing, 
the then Delegate from thoTerritory;by Mr. Gris- 
wold, of Connecticut, and by resolutions unani- 
mously passed at Dayton, Ohio, in September, 



1802, all of which I hereto'affix for publication, 
as Appendix No. 4. As one of the Dayton res- 
olutions emijodies and slates tiie wliole question 
with remarkable clearness and precision, I must 
here give it, as a complete enunciation of the very 
law of Kansas which is now in controversy: 

" We con-^idcr that the late law of Congross for the ad- 
mission of this Territory into the Union, as far as it relates 
to the oaUina; of a convention and ri'anhi'iu!; the election of 
its iiii'nihers. is an act of l.'.i.'isjallve n-urpalinn of power 
properly tlie province of tlie Territorial Leyislalure, bearing 
a striliiiiz similarity to the course olGreat Hritahi imposing 
laws Oil tiie Provinces. We view it as iinconsiimtional ; 
as a bad precedent, and unjust and partial as to the repre- 
sentation in the difTerent couinties." ! 

In the face of these protestations, the conven- 
tion met, and, in the exercise of the plenary 
power "til form a constitution and State govern- 
ment," ordained and established the constitution, 
and absolutely refused, by a vote of 27 yeas to 7 
nays, to submit the same for ratification. The 
official action of the convention, taken from its 
journals, will bo pTibiished herewith, as Appen- 
dix JSo. 5. 

By the provisions of the Kansas bill, as here- 
tofore referred to. Congress transferred to the Ter- 
ritorial Legislature wliatever powers it possessed, 
and expressly stipulated that the authority of that 
Legishitui-e should extend to all rijchtful subjects 
of li^gislation. Is not the act of taking a census a 
rightful suliject of legislation ? Is n!)t the law sub- 
mitting to the people the question of calling a con- 
stitutional convention a rightful subject of legis- 
lation? Is not the calling of the convention itself 
a rightful subject of legislation.' Are not the qual- 
ifications of its members, and the powers to be 
intrusted to them, and the place of meeting, right- 
ful subjects of legislation .' Is not the punishment 
of frauds upon the elective franchise, a rightful 
subject of legislation? 

If, then, Congress has abnegated all these ma- 
terial matters, and left them to territorial legisla- 
tion, no power remains to pass an cnablinic act, 
or to interfere with the mode fixed by law, for the 
people to govern themselves, because Cpngress 
cannot resume the exercise of the renounced au- 
thority, without intervening, defeating, and by its 
i very act, repealing the law orgcinizing the Terri- 
tory itself. If frauds have been committed, the 
territorial authorities are the proper tribunals to 
investigate and punish them. Cony:rc8s possesses 
no power, by the Cotistitution, to act as an in- 
quisitorial body upon the exercise of the right of 
suffrage, either upon the part of the people of a 
State oraTi'rritory; except so far as it relates to the 
qualifications and returns of its own members. 
Any other doctrine than this is the doctrine of the 
R.epublican party, as enunciated in their Philadel- 
phia filatform, tliat " the Constitution confers 
upon Congress absolute, unrestricted, and sover- 
eign power, over the Territories, for their govern- 
ment, and not upon the people." But, if anything 
were wanting to corroborate this view of the ques- 
tion, it can be supplied by an^ither section of the 
Kansas act already quoted, and so ably referred to 
by the gentleman from Mississippi, which looks 
beyond the existence of tiie Territory as a Terri- 
tory, and anticipates its existence as a State. By 
the operation of a fundamental stipulation, no fur- 
j iher proceedings on the part of Congress are ren- 



40 



dered necpssary.than the simple recognition of the 
Slatf* ilself, jind llie admission of tho same into 
the Union, with ii ri^publican constitutifin. This 
is non-iiit<'!'Vi'niioM — this is the very tri^t of the 
Kansas act, and anv other policy will be fonnd 
to be lipset with difficulties, not only formidable 
but insuperable. 

Sir, wKi'ncR conies it that the submission of a 
constitution to the people for ratification or rejec- 
tion, is considered necessary to its republicanism? 
Our fathers did not act upon that doctrine; and I 
have felt cm-ions to ascertain under what circum- 
stances the policy was ^iiianjru rated. After very 
considrrabk' research, I have found the fust ex- 
ample, and like all novelties in American politics 
of late years, it comes from a State that hiis al- 
v/ays been a leadino; power in the North — from 
Maxsachusetts — a State that has never been with- 
out a majestic shiire of the political control of this 
Governmi'iu, wirldud somelimos for good and 
sometimes fur evil. Frorn the commencement of 
the Giivernmont there has beeli astrugs:Ie between 
tlie iM'inciples of Virginia and the principles of 
Massa-hiisetls; the first, confining the Federal au- 
thority to the sphere of delegated powers; the last,' 
dilating that authority beyand proper scope and 
limits, and ending in legislative usurpations and 
legislative di'spot ism. In the State of Mai !!e, (then 
a part of Massachusetts,) on the 5th day of Oc- 
tober, 17H.'>, thirty-three delegates appearid at Fal- 
rn(uith, el('ctrd by the people without uutliority of 
ii\w, and ori^anized themselves into a convention 
for the purpos<' of considering v/hether they would 
erect themselves into a separate State. The Gov- 
ernor of Massachusetts protested against these 
proceidiiigs, precisely as the Governor of North 
Carolina had done, and which we have already 
explained ; but notvvithstandin<r this, three more 
conventions were held. The last ordered (i vole 
to be taken of the people, for or against tlie rnove^ 
meiit; the returns to be made to the president of 
the convention. A vote was taken; the people 
proiHiunced in favor of separation; but from 17S5 
up to leil9, no action resulted froin it, until the 
rightful authority of Massachusetts was exerted. 
In that year, on the ]9th of June, the Legislature 
passed an act for the separation of Maine, and for 
forming the same into a separate State. The act 
)>rescribes the qualification of voters; provides 
" that a majority of the voles returned to the pres- 
ident of the convention shall determine the ques- 
tion of the adoption or rejection of the constitu- 
tion;" for while it was made the duty of the con- 
vention to form a constitution of government, tlie 
delegates were required to sul)mii it to the people; 
and all those authorized to vote for delegates were 
required " to give a vote in writing," expressing 
approbaiion or disapprobation of the constitution 
so f)repared. The act went further than this; for 
it conferred on the president of tht; convention all 
the powers of the Governorand Council of Mas- 
Siiciuisetts, until a new Governor could be chosen. 
It will be found in full, in the second volume of 
Massachusetts laws. 

This was liu! fiist example in American poli- 
tics, so far as my researclu-s have gone, in which 
a constitution was directly submitted to the vote 
of the pt:o|>le. It inoceeded uptm the correct and 
unquestionable principle tliat it is connpetent for 



the people to limit the authority of their own 
agents and representatives in electing them; and 
it is for this very reason they are bound wtum 
plenary powers arc given. In this sense, the Le- 
compton convention having full authority to or- 
dain and establish a constitution l)y the organic 
act, it was not necessary to submit the constitu- 
tion to the people at all; and the mode ofsulimis- 
sion adopted in the schedule is therefore free from 
all the oljjections which have been urged against 
it, because, in submitting it to the people as a con- 
stitution with slavery, or as a constitution with- 
out slavery, the convention in effect ordained and 
established it as a fundamental form of govern- 
ment, v/hich the}' iiad by law a right to do, and 
left the only element of distraction to be decided 
at the polls. In every constitution since that of 
Maine, sinbmitted to the people for ratification or 
rejection, no discretion lias been left to the dele- 
! gates to the convention; but they have been re- 
quiiTd,.by the act creating them, to refer their 
I work to popular supervision. Louisiana herself 
I is not an exception; for although the law calling 
1 her last convention embraced the pov/er only of 
I proposing amendments to thp constitution, the 
new one was submitted as a whole, because the 
1 convention, instead of remodeling, revolutiotiized 
! tlie whole structure of the government. 
I [Elere the hammer fell.] 
I Mr. BURROUGHS obtained the floor. 
i Mr. CLEMENS. I beg leave to ask the unan- 
imous consdntof the House to finish wluitl have 
to say. 
Several Memeer9. Go on; no objection. 
Mr. JONES, of Tennessee. I insist on the ob- 
servance of tlie rule. 

Mr. STANTON. I move that the gentleman 

from Virginia have leave to pui>i!sh his retnarks. 

Mr. CLEMENS. I appeal to the gentleman 

from Tennessee to let me have five minutes longer. 

My argument is incomplete, and it is i)ut an act 

of justice that I should be ailowid to complete it. 

Mr. JONES, ofTennessee. The committee has 

no right to suspend the rules. 

The CI-IAIRMAN. The Chair has so decided. 

Mr. BURROUGHS. I am entirely willing that 

the genlleinan shall be allowed to finish liis speech 

out of my time. 

Mr. CLEMENS. 1 thanlc the gentleman from 
Nev/ York; and I will remember his courtesy an- 
other time. 

In Pennsylvania, by act of the29th March, 1836, 
a convention was called to propose amendments 
to the constitution, to be submitted to the people 
thereof, for their ratification or rejection. Wis- 
consin, by an act calling a convention, January 
31, 1846, required theconsiilution to be submitted; 
and Congress carried out this fundamental coiuli- 
lion, in admitting the State into the Union, by 
exacting the assent of the qualified electors, as 
prescribed by the organic law of the Territorial 
Legislature. This was not, therefore, a precedent 
on the part of Congress, but a simjile affirmance 
of the restraints imposed on the convention by the 
representatives of the people. Iowa jireseiits a 
case j)recisely similar. By the act of the Terri- 
torial Legislature, passed January 17, 184fi, the 
convention v.'ere authorized to submit the consti- 
tution to the qualified voters of the Territory; and 



x> 



11 



ionijross, in tlie. act admitting Iowa, required a 
jmpliance with this cardinnl provision. In Vir- 
iniii, by act of March 18, 1851), it was made the 
lUy of the president of the convention to certify a 
jpy of the constitution to the General Assernlily, 
lat a law miglit be passed for taking the sense of 
le good people of the Commonwealth thereon, 
"heact in regard to Minnesota — passed February 
S, iS^l , under the patronage of a prominent 
.epul>lican,anda ]jresent member of this House — 
'as the first instance in the history of the Gov- 
rnnirnt where Congress re'quii-ed a constitution 
) be submitted to the people of a proposir-d State, 
■here they, through their Territorial Legislature, 
id not themselves exact it. 

The act in question was passed hy the Repub- 
can party, and was a violation of the established 
rinfi|ile of leaving the people of a Territfu-y per- 
clly free to form tlntir government in their own 
ay, because they might have preferred to vest 
lat power in delegates or representatives. .But 
ley Were deprived of that liberty, and compelled 
( test the constitution liy a vote at the p(d!s. The 
isiilt has been, that we have luul tv/o separate con- 
?ntioiis in Minnesgta, and eairh one endeave.red 
> outstrip the other in the radicalism of its enaet- 
leiits, wiih a view to a popular triumph. Here, 
leti, we fiiid the true line of deir.ark^liini betweeti 
.epiiblicanism of the Revolution and that of our 
ay; and instead pf forinitig,by high-minded men, 
.abli; governments for posterity, we have had 
institutions changed lil\e the horns of the moon, 
lid whole Stales gravely proposing to determine, 
y the vote of a nriere majority at the polls, whether 
white man was not in every respect equal to an 
.fricflii negro. Sir, we are verging every hour 
ito the excesses of an unbridled popular licen- 
ousness, which, in the hallowed name of the peo- 
le, is repudiating the judgments of tne highest 
lui'ts in the land; breaking through all leonstitu- 
onal restraints, and destroyingall the checks atid 
alances our fathers formed, and wliich they pre- 
imed would be sufficient to protect the rigliisof 
very citizen. When the greatest city on the 
.merican continent can be convulsed with the cry 
f a starving people for bread, lilting up their 
arched li()S .in despair to the dull skies for life 
nd nourishment, how far are we off frohi that 
arisian liberty which takes blood when it cannot 
nd a bone .? Sir, in t!ii.s respect, the people en 
ct in mass, and in such cases they always act 
om their worst instincts and passions. Tiie law 
) the barrier which keeps both back; and the 
'resident has occupied, in this res|)ect, a position 
'hich lias tested the Spartan heroism of hischar- 
eter. If for one single day he had faltered in 
le stern discharge of his duty; if he he.d for a 
ingle day countenanced the violence and outrage 
ml anarchy of those who set every duty of the 
nod ciiizen at defiance, to attain their reckless 
nds, we should at this hour Iimvc been at the 
lercy of a [uomiscuous mob, headed by a lawless, 
rofligate militia general in buckram, with all the 
;merity of Bob Acres, without any of his con- 
enieiit virtues. 

Hut to drop this dit^ression, and to resume the 
rgument. In all those cases where constitutions 
ave not been submitted, the organic act,author- 
iing the election of delegates and defining their 



powers, did not require it. The same feeling, 
however, which has been displayed in favor of 
popular submission, has found vent in another 
direction, and a few years ago came very near 
transforming State Legislatures in to mere tribunes 
to propose laws, .instead of bodies to make and 
enforce them. The theory that it was necessary 
to give validity to State laws by subniitiin<j them 
to the people at the polls, was atone lime so pop- 
ular that it became part of the policy of a score of 
States in this Union. It was at its fullness about 
the time the temperance reform first became a 
political question. The first case I have fnund is 
that of Rice jk. Foster, (4 Harriimttm 's Delaware 
Reports, 479,) a full aljstract of whii-|i will be 
found in Appendix No. 6. The case arose under 
a law of Delawaie authorizing the people to 
decide by ballot whether license to reia 1 liquors 
shall be permit-ted among them. Tlie court de- 
cided that the law was unconstitutional; that, as 
the leaisiaiive power was vested in a Gener;(l As- 
sembly, the people had divested themselves of all 
legislative authority; and that they can resume it 
only in the forms of the constitution, or liy revo- 
lution. The same principle, arising undei- similar 
lav/s, will be found decided in Pennsylvania, 6 
Rarr's Reports, 507; in Indiana, in Maise d's. the 
State, 4 Porter, .343; and in a very al'le ohiter dic- 
tum by Jud^e Spalding, in Gri(Jith t'v. the Com- 
missioners of Crawford county, -20 Ohio Reports, 
by Lawrence, GOO. So far, indeed, did tins tfrave 
error proceed, that the great State of Ohio had to 
insert a substantive inhibition against it in her 
last constitution. 

Now, I have endeavored to show that a con- 
vention and a LeijisliUure were almost convertible 
terms; one making the supreme law, the other 
making laws subordinate to it, and enfo-<'ing the 
means to carry them into practical operation. If, 
therefore, after the people have vested their |iower 
of making laws in a Legislature, they are ini:oiti- 
pelent to resume thcauthority they have delegated, 
except acc'irdiiig to the ordinary routine of jjov- 
ernnient, on what principle, prtiy, does the doc- 
trine rest, that, after authority has Ijeeii given to 
form a State government to a convention, the 
work of that convention must be sulnniiied to 
the people for ratification or rejection? 

Sir, I v/ould gladly elaborate this point, as well 
as enlarge on others which press themselves on 
my attention; but the inexorable, Procrustean 
hour rule of this House forbids it, and I must un- 
willingly draw these remarks to a close. 

Sir, we are in the very Thermopylaj of this 
Re|)ublic. Evil signs and portents are around us. 
Patriotism has grown to be a timorous feeling, 
clinging like an unfledged bird to the nest of twigs 
where it was born. Broad, comprehensive states- 
manship, heroic political darmy;, the courage to 
face the buffalo herd rushing blindly on to the 
precipice, when an iron hand and arm ini^hi have 
turned nil back, has given place to the covert chi- 
canery of the Hindoo Brahmin, huggiiig to his 
bosom his blind idols at home; or to the pitfalls 
and corrals of the Sooders in the juii;rle, who cap- 
ture ih.e elephant by low stealth, rather than by 
open prowess. The President has done his duty 
fearlessly. What the countiy wanis is some man 
who can, in the future, durt dejcal on jjiinctpte; 



12 



and wlio, in the immortal declaration of Clav.j 
" would rutlici' be ri^lu than be President;" and ' 
not tlie f.icile trimmer that, like a small pennant j 
on the top of a mast, always shows whicii way 
the prcvailin'T wind blows. j 

Men of the North ! Democrats of the North ! | 
the power is in your hands ! How do you intend \ 
to use it? How many of you can afford to stand 
forth at tills dark hour, as muezzins upon the | 
watch-tower, and cry out that "all is well?"! 
' Ore^oi) is yoms; Minnesota is yours; Washing- i 
ton is yours; Nebraska is yours; Utah is yonrs;! 
and Kansas and Dacotah rnust be yours! While] 
I spetiic,ihe lin<; of your advancing population is | 
filing along the gorges of the Rocky Mountains, | 
and planiinir in the midst of the wilderness new | 
empins. For i/eit, there i« the full (."ruirion and the j 
triuiYiphant result. For its, there osily lingers a 
naked ju-ineiple: 

'• A liarren =epptrr in our sriipe. 

Thfiiiee lo I) • wrdiicli'd wiili ari uuliiiL'a! hand, ' 

No son uloiirs sueceetliii^ !" 

Remember the language of Napoleon to one of i 
your own coumrymeri: j 

" Asaciiizrn ol'tlic world, F would addn-.-s yo\ir country. 
Every ru.iM, and evrry nation, is ambitious; 'and ainl)itli>n I 
grows witli pnwi r, as the blaze of a vertical Min is ilio most i 
fierce. CIk'i i-li, thureibre, a national .-trcnirtli. Fortify your ! 
political insilluliiins. Konienilier tliat ainiii;s and navies i 
are ot'tlic sauu- use in llic world as Uic police i]i l.ondmi or j 
Paris, and ^oldll'rs are not made like poller's vessels, iu a ; 
mimite. (.^uliivate union, or jour empire will hi;, lilic a! 
colossus of gold lallcii on tlic <iart,li and bniken to pieces, ! 
tile prey of loreiiio and domestic .Saracens. If you .-ue wise, ' 
your Republic will bi; permanejit, and perhaps VVasiung | 
TON will be bailed as the founder of a happy and ^ilorious I 
empire, wl)eu the name of Uouaparte sliall lie obscured by j 
succeeriina revolutions I" ' : 

Shall we have Ihh, or shall we have tliat other' 
picture so powerfully delineated in the Bible: ! 

"The trei's went forth on a time to anoint a kins ever] 
tliein. And they said unto the olive tree ' reiun tieju over us.' 
J!ut the olive tree .-aid uuto them, ' shotibl I leave my I'at ; 
ness, wberewiih by nnthey honor God and man, an<l yo to j 
be promoted over the trees." And the'trees said to the tig : 
tree. ' come llou and rel2n over us.' But ilu' fig tree said , 
unto them, ' should 1 I'oisake my sweetness, .a ml my [;o<id ' 
fruit, tijid l;o t<r lie promnied over the trees." 'J'hen said the i 
trees unto the vine, ' cinne thou anil reij^ii over us.' .■Vnd 
tlie vine said unto iliem, 'should I leave my wini\ wnich : 
cbeereth God and man, and go to be promoted over the j 
trees." Then sail </// the trees uiuo the bramble, ' come ! 
thou and reiun over us.' And the brainl)le said uuto iJie I 
trees. ' if In truili ye anoint nifi king over you, then, conic j 
and put )our ti ii.-l in my shadow ; and if noi, let tire come i 
out of the bramble, and devour the cedars of Lebanon !' " ! 

APPENDIX. ; 

No. 1. I 

Erhncts from Ike lleraiil of Freedom. j 

"TiiK Kansas Election.— In order to sliow the fallacy I 
of the alienation that there will be civil war in Kansas, ' 
(should the Stale be ailinitted under the fiecomplon eonsti i 
tutioii. we clip the following articles tVoiri the Herald of ^ 
Freedom, of the Uiili, the leading liepubliean paper of the j 
Territory It U'lll be sei-ii that so lar Ironi lesislance, the ! 
better (lass of the P»epul)licans e.xpect and desire aduiis^ion ' 
under that instrnment: | 

'"TuK.'^i.oTiis tjKsi'ONSini.E. — Mr. Piigli. from Ohio, has ; 
introduced a bill in the Senate for the immediate admission [ 
of Kansas into tiie I'liion, under the Jjecmnpton i^nnstitii- \ 
tion, and pnividiii!: that the Lefislature ol' the Slate may 
niJike provisiim lor subiiiitilng a vote on the slavery <'Viuse ] 
Hsain to llie people. It is lielieved that this bill, or tlijil ■■{ ; 
Mr. Siephens. ol Geortaa, will be'eome the law. Iiiileed, j 
nearly all our friends writing us from VVashingion, say there ; 
is but little doubt of the result that our ailiih.->ion into the 
Union nniter the Lecomplon constitution has bi^eonii" a fixed 
fact; that the result is uhiiost as certain as if we were now 



1 - 

within the Union. If Kansas does cotne into the Union iu 
Ibis manlier, and Is made a slave State, as a consei)uenct, 
the Slotlis, and the doi;s in the manger who woulil not vote, 
nor let their friend.-; vole, shall bear the eeu.-ure.' 

" Had the Free .'^tate- pirty consulted ilieirbe-t interests 
instead of standing on etiquette, as they did in June last, 
they woiilii have ' pitched in' and elected ecerii de esiiue to 
the eon-tituii(Uial convention. Then, if they had u anted 
ihe Top; ka constiuiiimi as their fuiidameiiial law, they 
c<aild have cloihed it with lesiil saiietion, so far as appear- 
ances are conciTiied, and now we could have lieeii lialf way 
imt of the woods, instead of being surrounded with difti- 
ciilties. which, at times, seem inuriiiouniable. We have 
a long chapter to write on this subject, some day, that W'" 
put a dilT'-renl face on this statement from that nowsecii by 
many of our readers." 

" Durifig ihe last week s-everal geiillemen liavp inquired 
what we would advise, in ease we liave le'i'n so t'oriiinate 
as to obtain possession of the government by the election ol 
the Ijegislatiire. and Ci. tigress should admit its into the 
Union lijider the Ijccoinpioii eonslitiition .' We have re 
plied, in each instance, that as soon as the Lefiislature is 
convened under that instrument, without stopping to make 
any orher enaetinents, or doing any other thing than to or 
iranize the law makiiis! power, we would have them pass a 
law, enabling the »"ople to elect delegates at ;iii early day, 
to a new eoiisiitiilional conveniion, throwing every iieees- 
stiry siuard arniind the liallot box, to insure fairness in tlie 
elections, Thi- done, tin: peojilc should eleet de|en;ue;. and 
a new cnnstituiion, such as the people desire, should he 
framed, and suiimiiied to them for adoption or ivjeciion. 

'• If adopted, State otficers should be immediately (dected 
under it, and they should hi; perm it ted to enter at onC" upon 
the duties of tlieir resjiective oliices. This, we are happy 
to say, was the position of the convention which put in 
noniinatioii the Ami Usurpation State ticket at the \Mv 
election, and am-eeably to the request of wliii-h iii>minations 
were made in tile various legislative and senatorial districts 
all over the Territory. In proof of this, we copy the third 
resolution of the convention, in the following words : 

'' ' Kew^reif, That the candidates nominati'd hythiseoB- 
vention, on accepting such noniination, will h- considered 
as pledged, should the constitution be adopted by (Congress, 
to adopt and execute immediate measures for enabling the 
people, through a new constitutional eonveiition, to obtain 
such a coiistiluiion as the majority shall approve.'" 

No. -2. 
Goeemor Chittenden. 
'•Congress, it is presumed, will not protend lo unlimited 
power, or to any other than what has been deleiiated to them 
from ihe Uiiileii States ; nor will tlii\v pretend Ilia; tlieir Arti- 
cles olt'onledeiation will warrant them in inliri'eriiiff with or 
controllinL' the internal police ot the United Siae-s. Whence 
did Ihey obtain any righi:ul pr.'rogtuivc over the internal 
police ot' this State, iVoin which they have never received 
any delegated power.' The same arsument against the 
right of Great Britain to tax the .\mericaii Colonies ai pleas- 
ure without represeiitalioii, will apjily against the right of 
Congress to control tlie civil aulhorit) of this Stale ; tor if 
they may in one instance do it, they may in another, till 
they suppress the whole." 

The General ^Ssaemhly of P''ermont, through the Spertker, to 
Consress. 
" By the resolutions of August, 1781, Congress have ac- 
knowleilged the riiiht and independence of the Siate of 
Vermont, on a preliminary eonditioii ; and all and every act 
of Congress wiiich iiiterteres with the internal government 
of V'ermont, or lends to prevent a general exercise ol her 
laws, are unjnstiliable in Iheir iialiire, and repugnant to 
every idea ot' t'rcNdom. We conceive thai the several States 
ill the Union do not owe lo Congn^ss their existence ; hut 
that each Slate wa.s formed by the association and civil com- 
pact of its inliahitants. Through this medium Ihey derive 
their separate rights to jurisdie ion, and Coimressthe ilitTer- 
eiit powers they are vested with ; and have, of course, 
neither the power nor the right to mnkc nr unmnke States 
irithin or n ithjiU the Union, or to control their internal 
police, without a power delegated to them for the purpose. 
We are still ready to conifily with every reasonahle requi- 
sition of Congre.-s ; hut vvlii'n tln-y require us to nbroL'alc 
our laws, r(;veisi> the solemn decisions of our eniirts of jus- 
tice, and overthrow our civil trovernment in favor oi' insur- 
gents and disturbers of the public peace, we tiiink ourselves 
justified to God and the world, when we say we caunol 
comply with hucli reijuisitions." 



18 



No. 3. 

Tlip law of Vir=:i/.ia of ilie 18th of December, 
resnribcs the qualification nfvotcM-s, and the eloc- 
nn of intnnbt'is to a convention to erect an inde- 
•luieiit Stale, out of the district of Kentucky. It 
ve.s the said convention " full power and au- 
luriiy to frame and establish a fundamental con- 
ituiion of ijnvcrnmeMl," for said State, ujion 
•rtain conditions, specified in said act. It pro- 
ded that a convention should beheld at Danville 
1 the 26'h day of July, 179U, with power to 
loose officers, &c., and to determine whether 
it he the will of the people" to create an inde- 
■ndent State. Five members assemljled were 
ifHcieiit to adjourn from day to day, and had 
iwer to issue writs of election to sup|ily vacan- 
es from any cause. Two third') of the whole 
iniher of members to be elected were required 

determine on the expedien'cy of creating an in- 
jpendent State. In the event of determining' 
ion a si^paration, the convention were author- 
ed to fix u[ioii a day posterior to the 1st day of 
oveinbir, 1791, on which the authority of Vir- 
nia and its laws should forever ceasi^ and de- 
rminr; but that authority was made dependent 
>on the contingency that; the Government of the 
nited States should, prior to the said date, assent 

the erection of said Stale, and should agree that 
e proposed State shall, iminediately after the day 

be fixed posterior to the 1st day of November, 
'91, <u' at some convenient future time thereto, 
) ailuiitted into the Federal Union. To avoid 
larchy, authority was given to the convention 

take the necessary prnvisional measures for 
e election and meeting of a convention, at some 
Yie prior to the day fixed for the determination 
'the authority of Virginia, and posterior to the 
t day of November, 1791, " with full pov/erand 
ithoiity to frame and establish a fundamental 
■nsiitution of government, and to declare what 
ws shall be in force therein, until the same shall 
I abrogated or altared by the legislative author- 
/ acting under the •■onstitulion, so to be framed 
id established." The representatives of Vir- 
nia in Cimgress were iuslruet.ed to obtain a 
leedy act in conformity with these provisions. 



No. 4. 
Mr Fearing, the Delegate from the eastern di- 
fion of the Northvi'est 'I'erritorj', on the 31st 
arch, 1H(J2, on the report of the .select commit- 
L' respecting the admission of the said division 
a Stale into the Union, >said: 
•• rl;^ slidiild oppii.-ii' tliis resnluuon. hiil not nii ilie ground 
fixprilit^iicy. Ml' ()|i|)i)<od ilio if-iiliitioM on Cdiistiliuinnal 
iiifi|iifs. He eoiietivetl (,;oMi!ress Imd iiotliiiij; to do with 
B aiiaiigiMiiKnts for calling a coiiveiitiou. 
••Ciiii (/Oiiiiresj ex<■l•ci^^f: pinver given. oxclusively to the 
opl<'.' He conceived it would hv. as sro;il an encroucli 
Jilt upon tlieir liu'lits to t-ay ihey sliouhl iiieei together in 
iiVi'niiiiii and fbriii a eonsiiiutioii, a.s it would be to say 
to ;t.iy State in (he Uniou." < 

Mr, Griswold, of Connecticut, said: 
" What is the condition of the pt'oplo of the Territory? 
ley an,' not. it is true, as to every purpose orjjuvernnient, 
State, but tliey have a complice Lei;i>lature,as I'lilly coni- 
teni to li'j;JslHt<' as the I,cpi,~l:ilnre o(' d'liirylunil, or any 
UT L'";isliuiire in the Uiiii.n. 'i'hey are lully cmnprteiit 
the iieikiiij: oC a'l laws to ri'guhite the internal (vmceriis 
the Bovrriiiiient. Now thesis resohilions go to inteneie 
ilh Ihe^e internal concerns, and to regulate theio by law. 
!ieu the gentleaiau Ironi Kentucky undertakes to decide 



I the terms on whieh the tneirrbersof the eonvention shall bir 
chosen, t ask him, whiMe is the power.' Are not the powers 
ol' the Territorial Legishituro as full as those ol' the Le<;is- 
latuie of Maryland.' And have wi- n"t as good a rifiht to 
interfere wjtii the State concerns of jVIirylMiid a> to inter- 
fere will) the concerns of this 'J'erriiory .' W' have the de- 
terniiiiatmn of the Lejiisiature of the 'i'erritory (hat it is not 
desirous of fonniii!; a eonslitiiiion at ihis time. If, then, 
we go abreast of the deteriiiinauon of one liegi^lamre, why 
not of another.' If we go abreast of thai ol' tlie North- 
western Territory, wliy not go abreast of ihat of Maryland.' 
If, loo, you iiKiy leijjslate for the p -ople before they are 
admitted into the Union, you mnv also legislate for them 
ailerwards. If you do not like ilie constimtion they now 
foini, you may pass a law for aiiotlier convenlioii. 

" I5y a pirity of reason you may force down a constitu- 
tion on (^ininecticut and siiy that yon will give lliein one. 
Acting on such a principle there can be no ^lopping place ; 
you may go lo any length. If you interfere with the hu- 
thorily vested in others, you may go to any length, and that 
the consolidation of Ihe Stali-s, which some gentlemen af- 
fected, will he acconiiilished. I am, therefore, on constitu- 
tional grounds opposed lo those resolutimis. Let ns turn to 
the third resolution, which is calculated, in expres- words, 
for calling a convi'iitlon, by law of tlie United States, and 
taking tlie population of the last census as ilie basis of rep- 
resentation. How are the opinions of the peo|)le upon the 
calling of a convention to be oblaineil.' How Is their con- 
sent to elect delegates lobe obtained .' I answer, in no other 
way than by an act of the Territorial Legi>lalure, or by going 
around to every man in the Territory and oiitaining lii> opin- 
ion. You must obtain theconseiitof the Tinritorial Legis- 
liuure belbre you take the step of calling a convention." 

The proceedings of Congress gave rise to a 
pui:)iic meeting of the citizens of Da5'^ton, Ohio, 
on the 2Gth of September, 1802 The following, 
among other resolutions, was adopted unani- 
mously: 

" We consider the late law of Congress for th? admi.ssion 
of this Territory into the Union, as far as it relates to the 
calling of a convention, and regulaiing the eleclion of its 
members, as an act of legislative u.-iiipation of power prop- 
erly the province of the Territorial Legislature, hearing a 
striking similarity to the course of Great Britain imposing 
laws on the Provinces. We view it as iiMconstitnlioinil, as 
a bad prci-edent, and unjust and partial as to the rejiresent- 
ation in the ditlercnt counties. We wish (Uir Legislature 
to be called ininiediately to pas.s a law to take the enumer- 
ation lo call a convention, and to regulate the election of 
members, and also the time and place for the meeting." 



No. 5. 

In regard to the suhnisdon of Ohio Constitution of 1802. 

Friday, Novemhvr \-2, 180?. " Leave was given to lay be- 
fore the conveiJliiMi a resolution for submitting the consti- 
tution or frame of government, now preparing, to the people 
of the eastern division of the T(.'rritoiy, nortlivvest of the 
Ohio, for thciraceeptanee ordisapprobalion ; which resolu- 
tion was received and read the first time : Whereupon, 

" OrilcrerJ, That the .said resolution be committed to a 
committee of the n-h'jle conveiitioa to morrow." — Med. N. 
C. lUI. 

S.itarda^i, Kjremherii, 180^. " The convention, accord- 
ing to the order ol'the day, resolved itselt into a committee 
of th(^ wholeconvention on tin- resolution of siibmitiingthe 
coiisiiiuiion orframe of government, now pri'paring, to the 
people of the eastern divisionof the Territi'ry. northwest of 
the Oliio, for their acceptance or disapprobation, Mr. Byrd 
in the chair; and, after some time spent therein, Mr. Pres- 
ident resumed the chair, and Mr. P.yrd reported that the 
cominiitee had. according to order, had the said resolution 
iinrler consideration, and directed him to report to the con- 
vention their disagreement to the same. 

'• On the (piesiion that the convention do agree with the 
conimltiee of the whole, it was resolved in the atiiriiiative 
— yeas 27, nays 7: 

'■ Yeas— Abbott, Abrains, Baldwin, Oair. Brown, Byrd, 
(Caldwell, (Jarpeiiter, Darlington, Donalson, Diinlavy.Gatch, 
(J'i!ortli, Griibb, Humplirey, Huntington, Kirker, Kitcliel, 
Massie, Miiligan, .^lorrow, Paul, >Sargent, Smith, Wilson, 
Woods, and Worthington. 

•• N.ws — Culler, Gilnian, Mclntire, Putnam. P.eilly, TJp- 
degr.iff, and Weils." — Journal, published in iicd. N. CoH- 
stitution. 



14 



No. 6. |! 

Tlip casp of Rice against Foster (4 Harrington', 
Reports, 47fl) arose under an act of the Legi.sla- 1 
ture of Delaware, oflhe 19th of February, 1H47, : 
authorizin*^ the people to decide by ballot whether || 
license lo retail intoxicating liquors shall be ! 
permitted among them. The constitutionality of ji 
the act Wiis contested, and the case carrii d to the || 
highest court of a|ipeal for decision. The court' 
decided ilie law in question to be unronslilutional; [[ 
that as the legislative power in the State wasji 
vested in a Grneial Assembly, consisting of ail 
Senate and a House of Representatives, the peo- ! 
pie have divested themselves of air legislative ji 
power and vested it in this body, and that they i 
can resume it only in the forms of the constiti;- ' 
li«n or by revolution. That the General Assem- ' 
biy cannot delegate iliis power even to liie people J 



at large, nor can they make it depend upon the 
votes of the people at the polls. Booth, the chief 
justice, in delivering the opinion of ilie court, 
said: 

'' V\'e liiwe been taiisht by the loasons of history that equal 
anil indeed jrenter d.irip;ers re>uUi'd from a pure demoeraoy 
tli;in from an absolute inoaarcliy. Each l.-ads in des|Mili.-m. 
Wherever llie powernl tiiakin;; laws, wliieli is the ^uprenle 
(iiiwer ill a State, Inis been exercistui directly by the people 
under any sj stem of poliiy, and not by representiition, civil 
libirty has been overllirowii. To iiuard aJ!aill^l tlie.-e dan 
gers, our repiiblieiin (.'overiiinniil was i.i: liluled liy tin- eon- 
sent of ihe people. 'I'lie rli.iiaeti^risli • wiiieh di,-liii;;uislu.-« 
ittrom the mi>ealled republicsof anel it and uiodern limes 
is, that none of the powers of sovereipMiy are exi;rei>ed, 
but all of tliein by separate coordinate branches of aovern- 
inent,inwhom those powers an- vested by the constitiilion. 
'J'liese coiirilinate branehes are intended to operate as bal- 
aiiees.clieeks. and restraints, not only upon each oilier, bat 
upon the people tlii'Uiselves, to gu'.rd them acainst their 
own ra>line.s, prepipiianry, and ini-guided zeal, and to pro- 
tect the minority against tlic injustice, of tlie majority." 



1 



• 9£Z 980 910 

"III 



SS3d9N0D dO AdUdail 



